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Any course or program of action adopted by a government may consist of general or specific provisions. Because of this I do not consider it prudent to define the word either in general or in the context of the Act.
I prefer to begin by stating the obvious, namely that laws, regulations and rules are legislative instruments whereas policy determinations are not.
As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments. Policy determinations cannot override, amend or be in conflict with laws including subordinate legislation.
Otherwise the separation between legislature and executive will disappear. In this case, however, it seems that the provincial legislature intended to elevate policy determinations to the level of subordinate legislation, but leaving its position in the hierarchy unclear: The inadvisability of having yet another level of subordinate legislation is immediately obvious; its legality was not debated and need not be decided and I shall assume its propriety for purposes of this judgment.
One thing, however, is clear: Where, for instance, the provincial Act entrusts the minister with the responsibility of determining the maximum permissible number of licences of any particular kind that may be granted in a particular area s 81 1 d , the cabinet cannot regulate the matter by means of a policy determination, something it did.
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In other words, the cabinet cannot take away with one hand that which the lawgiver has given with another. It is to be noted that the power is to be exercised in relation to licences and not to licence applications.
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How does it work? In terms of these provisions, an application for the admission of a learner to a public school is made to the Department in a manner determined by the head of department , 31 and it is the head of department who is responsible for informing a parent of a refusal of an application and the reasons for it.
In terms of the Schools Act, the implementation of the admission policy at the school level is the responsibility of the principal, acting under the authority of the head of department.
Thus, while the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level, by the principal acting under the authority of the head of department.
Insofar as applicable provincial law is concerned, the Gauteng Regulations are pertinent. The Gauteng HOD would be required either to confirm or to set aside the decision made by the principal.
This matter is the latest instalment in a trilogy of school-related cases in this Court which, at their heart, concern the powers of a provincial department in relation to policies adopted by school governing bodies.
The Court held that the head of department acted unlawfully, in that section 25 of the Schools Act could not properly be invoked in the circumstances.
They emphasised that the parties had failed to engage with each other in good faith, to uphold the principles of co-operative governance, and to comply with their concomitant duty to avoid litigation.
Distilling the core of these judgments, the principles that have emerged from the case law can be set out as follows:.
Where the Schools Act empowers a governing body to determine policy in relation to a particular aspect of school functioning, a head of department or other government functionary cannot simply override the policy adopted or act contrary to it.
This is an essential element of the rule of law. Further, given the partnership model envisaged by the Schools Act, as well as the co-operative governance scheme set out in the Constitution, the relevant functionary and the school governing body are under a duty to engage with each other in good faith on any disputes, including disputes over policies adopted by the governing body.
The engagement must be directed towards furthering the interests of learners. What then of the present debacle?
The applicants submit that an admission policy is not law, but merely policy. As such, it guides decision-making but cannot bind the Department inflexibly.
The Gauteng HOD was therefore entitled, when exercising his constitutional and statutory powers, to depart from a capacity determination provided for in the admission policy.
The school submits that interpreting Regulation 13 1 to afford the Gauteng HOD the power to act contrary to the admission policy would result in a conflict between national legislation the Schools Act and the National Education Policy Act 44 on the one hand, and provincial delegated legislation on the other.
It contends that the relevant national statutory instruments envision that the governing body of a school is responsible for the implementation of its admission policy, whereas the Department is merely responsible for the administration of the admission policy process.
As my analysis of subsections 5 7 to 9 above demonstrates, 45 I am not persuaded by this view. Rather, the scheme of the Schools Act in relation to admissions indicates that the Department maintains ultimate control over the implementation of admission decisions.
This finding — that the Gauteng HOD did have the power to admit a learner who had been refused admission to the school — is a key distinguishing factor from the circumstances in Welkom.
That a policy serves as a guide to decision-making and cannot bind the decision-maker inflexibly was well expressed in MEC for Agriculture v Sasol Oil , 47 where the Supreme Court of Appeal held:.
In Akani v Pinnacle Point Casino 50 the relationship between policy and legislation was soundly expressed as follows:.
As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments.
Policy determinations cannot override, amend or be in conflict with laws including subordinate legislation. Otherwise the separation between Legislature and Executive will disappear.
In conclusion, the general position is that admission policies must be applied in a flexible manner. If there were good reasons to depart from the policy, it was always open to the principal or the Gauteng HOD to do so.
The Supreme Court of Appeal therefore erred when it concluded that the Schools Act placed admission decisions squarely in the hands of the Rivonia Governing Body and that the Gauteng HOD could not override the admission policy.
However, a decision to overturn an admission decision of a principal, or depart from a school admission policy, must be exercised reasonably and in a procedurally fair manner.
The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government.
Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness.
A characteristic of our transition has been the common understanding that both need to be honoured. It is to the analysis of procedural fairness that I now turn.
It has not been contested, and rightly so, that the decision of the Gauteng HOD to admit the learner in terms of Regulation 13 1 a constitutes administrative action and that the Department has a duty to act fairly.
In this regard, the Department argues as follows:. It would have been wholly impractical to have afforded the learner and the school a dedicated hearing in each of these thousands of cases.
In addition, the Department contends that there were no special circumstances in this case requiring any further consultation with the school.
This is because the Department and its representatives had already consulted with the school from September to November It is well established that the requirements of procedural fairness must be determined flexibly, having regard to the facts of the particular case.
Indeed as this Court recognised in Joseph: Administrative efficiency is an important goal in a democracy, and courts must remain vigilant not to impose unduly onerous administrative burdens on the State bureaucracy.
However, for the reasons that follow, it is plain to me that the Gauteng HOD was required to go further in the circumstances of this case.
First and most important: Ideally this should take place before the school year has begun. The steps should be taken well ahead of the beginning of an academic year.
However, the circumstances of this case demonstrate a significant departure from what may have been expected in the normal course.
Almost four weeks into the school year, the dictates of fairness required affording the school an opportunity to address the Gauteng HOD on the impact that such a placement would have on factors such as the quality of education of other learners at the school, access to resources for the learner herself, and the time that may have been required to accommodate the learner effectively.
This opportunity was never afforded to the school. There was a dispute on the papers regarding the details of that meeting.
It came as a rude shock to the school, which had already settled into the school year thinking the matter had been resolved.
This is not to say that the Gauteng HOD was not entitled to exercise his power when he did. But the circumstances affect what the demands of procedural fairness were when he made his final decision.
As I see it, the Gauteng HOD should have afforded the school an opportunity to make representations and respond to the tenth-day statistics report, before the learner was forcibly placed in the school.
In the result, I find that the decision by the Gauteng HOD was not exercised in a procedurally fair manner. Apart from the specific procedural fairness flaws in the circumstances of this case, it is necessary to emphasise that, in disputes between school governing bodies and national or provincial government, cooperation is the required general norm.
Such cooperation is rooted in the shared goal of ensuring that the best interests of learners are furthered and the right to a basic education is realised.
Both provincial government and individual schools have to grapple with systemic capacity problems and their impact on education.
And they play an important role in improving that quality by supplementing state resources with school fees.
However, the needs and interests of all other learners cannot be ignored. As was recognised in Ermelo:. At the provincial level, government is under an obligation to ensure that there are enough school places for every child to attend school.
However, this obligation must, as the Onderwysersunie submitted, take into account the fact that determination of capacity is a complex process that applies not only to the school as an entity, but also to each and every grade and class within the school.
It involves a consideration of a range of interwoven factors relating to the planning and governance of the school as a whole.
Planning and coordination in partnership with school governing bodies is crucial. The relationship should therefore be characterised by consultation, cooperation in mutual trust and good faith.
The goals of providing high-quality education to all learners and developing their talents and capabilities are connected to the organisation and governance of education.
It is therefore essential for the effective functioning of a public school that the stakeholders respect the separation between governance and professional management, as enshrined in the Schools Act.
I can do no better than to repeat those sentiments:. That applies to education too. In the present case they should have done so and that may well have prevented this long journey through the courts.
The Constitution and applicable legislation thus require the partners in the governance and management of schools to engage with one another in mutual trust and good faith on all material matters relating to that endeavour.
This case illustrates the damage that results when some functionaries fail to take the general obligation to act in partnership and cooperation seriously.
In the early stages of the tussle there was some engagement between the parties, albeit tense. The value of that engagement was demonstrated by the understanding between the school and the Department reached at the end of November By contrast, the manner in which the Gauteng HOD thereafter exercised his powers completely upended the process.
It created antagonism and mistrust, causing the Rivonia Governing Body to recoil. Desiring to safeguard its own authority, the school failed to place the interests of the learner first.
Instead, it resorted to litigation. Rather, and quite ill-advisedly, the school not only sought a declaratory order to establish the relative powers of the Rivonia Governing Body and the Department to determine admission capacity, but also sought relief requiring the learner to be placed in another primary school until she could be accommodated at Rivonia Primary.
However, as counsel for the school conceded before us, ordinarily one additional learner would not burden a school to the point of collapse.
In this case there is particular reason to emphasise the duties of co-operative governance and the impact they might have on the children concerned.
The duty on the parties to cooperate and attempt to reach an amicable solution is intimately connected to the best interests of the child.
Due to the failure of the parties to engage and reach agreement, the learner was physically placed at a desk and was caught in the middle of a disagreement which may well have been very traumatising for her.
To me this highlights the fact that the principle of co-operative governance is not merely a tool to ensure smoother intra-governmental relations, but one which has a direct effect on the people whom the government serves.
Both parties could and should have done more to prevent the need for litigation. As stated earlier, disagreement is not necessarily a bad thing, and we must expect that in trying to determine what the best interests of learners are there may be differing visions.
But one organ of state cannot use its entrusted powers to strong-arm others. All sides are required to work together in partnership to find workable solutions to persistent and complex difficulties — and resorting to court in every skirmish is not going to help in that process.
Disciplinary proceedings against the principal. An application for the review of the disciplinary proceedings instituted by the Department against the principal is not before us.
The appeal is upheld, and the Supreme Court of Appeal order is set aside. However, given my conclusions relating to the manner in which the Gauteng HOD exercised his powers, I am of the view that it would be fair that each party pays its own costs.
The following order is made:. The appeal is upheld to the extent set out below. The order of the Supreme Court of Appeal is set aside and replaced with the following order:.
This case concerns a little black girl whose dream was to obtain education at the school closest to her home. This policy was adopted by the Governing Body of Rivonia Primary School governing body ostensibly to protect the interests of the school and its learners.
The school in question is a public school which falls under the administration of the applicants who are all organs of state.
Attempts by the applicants to have the girl admitted to the school failed. Ultimately the applicants adopted robust action to force the school to admit her.
When the school refused to admit the girl, her mother approached the applicants for intervention. It was this intervention which gave rise to the dispute between the school and the applicants.
On being forced to admit the learner the school approached the High Court for relief. They sought the review of the decision by the Head of Department: They also sought that the impugned decision be set aside on the basis that it was procedurally unfair because the school or its principal was denied the opportunity to furnish reasons for not admitting the learner.
However, no facts were pleaded nor was there evidence furnished to support the latter claim. I return to this point below. The High Court was not persuaded that any of the claims was established and consequently it dismissed the application.
The governing body and the school appealed to the Supreme Court of Appeal. The Supreme Court of Appeal approached the case on the footing that the principal question for determination was whether the governing body could decide the number of learners to be admitted to the school.
The power of the Head of Department to intervene, so it was held, was limited to cases where the school has exercised its power unreasonably, unconstitutionally or unlawfully.
Having found that the refusal to admit the girl was done in terms of a policy lawfully adopted by the governing body, the Supreme Court of Appeal issued the following order:.
This is the sole order that forms the subject matter of the appeal before us. It determines the scope of the appeal because in our law an appeal ordinarily lies against orders only.
The proposition is so trite that no authority need be cited for it. I have read the judgment prepared by my Colleague Mhlantla AJ the main judgment.
I agree that leave to appeal must be granted and that the appeal ought to succeed. However, I do not agree that the granting of the second and third declaratory orders is justified.
In my respectful view the question whether the Head of Department acted in a procedurally fair manner in issuing the instruction to the principal and in placing the learner in the school without giving the school the opportunity to make representations on the tenth-day statistics was not an issue raised in this Court by any of the parties.
Before us the sole issue was whether the order issued by the Supreme Court of Appeal was wrong. The parties themselves focused on that order.
The applicants challenged the order while the school defended it. In these circumstances I am unable to support the second and third declarators issued in the main judgment, even in the light of procedural fairness having been mentioned in argument.
This is so because procedural fairness was mentioned in the context of the complaint made by the school in its papers. It asserted that the principal was denied the opportunity to give her reasons for refusing to admit the learner.
It will be remembered that here we are concerned with motion proceedings. It is a fundamental principle of our law that the notice of motion and founding affidavit, together with its annexures, constitute pleadings and evidence which must justify the grant of the relief sought.
In Skjelbreds Rederi, 74 this principle was stated in these terms: Another basic rule in application proceedings is that the facts necessary to prove a claim must appear in the founding affidavit and its supporting documents.
Hence the proposition that an applicant must stand or fall by its petition and the facts alleged in it.